The term ‘whistle-blower’ is often bandied about in a variety of situations, but what does it mean in an employment context and what protection is available? In simple terms, an individual who makes a protected disclosure is protected from suffering a detriment. That detriment might be dismissal, or it could be something short of that which is still unfavourable. But what counts as a protected disclosure such that you can classify yourself as a whistle-blower?

This issue was recently considered by the Employment Appeal Tribunal in the case of Martin v London Borough of Southwark EA-2020-000432-JOJ. Mr Martin was a teacher, who was concerned that he and his colleagues were working excessive hours. He claimed he had made various disclosures about this fact, and had suffered detriment as a result.

The employment tribunal considered the five disclosures that Mr Martin had made, and did not accept that they amounted to disclosures qualifying him for protection. He appealed that decision, and the appeal tribunal agreed that the proper legal test had not been fully considered regarding each. They, therefore, restated that test, which is:

There must be a disclosure of information: Whilst this might sound obvious, the ‘disclosure’ needs to be sufficiently specific that the recipient knows what is complained of. It might be put as an allegation, but simply saying – you are failing to comply with health and safety legislation – is unlikely to be enough.

The worker must believe that the disclosure is made in the public interest: If the worker complains of something which impacts the wider public (such as the safety of a product) or about financial wrongdoing (which might affect shareholders) then there is a clear public interest element.

But sometimes a disclosure that affects only that worker might still be in the public interest – for example, if a doctor complains about their working conditions, which may well impact the wider public too.

That belief must be reasonably held: Whatever the worker’s views, they must be objectively reasonable to be considered.

The worker must believe that the disclosure shows one of the matters set out in the legislation: this includes a criminal offence, failure to comply with a legal obligation, an individual’s health and safety is being endangered or that the environment is likely to be damaged (amongst others).

A qualifying disclosure must be about one of these specific matters – it cannot simply be about any issue that the worker thinks is unfair or inappropriate.
That belief must be reasonably held: Again, whether one of the matters above is potentially made out by the disclosure also has an objective element.

Mr Martin first complained by email to the headteacher at the school, saying that he was looking at his working hours and was ‘not able to reconcile them’ with the statutory guidance. He set out the calculations that he was concerned about. However, he also acknowledged that he might miss something, and asked for a discussion. T

he tribunal decided that this email amounted to only an enquiry, rather than the disclosure of information. But the appeal tribunal considered that the proper test had not been followed. The tribunal appeared to have only considered an objective test. The fact that disclosure was tentative did not mean that he did not reasonably believe that there had been a breach of a legal obligation.

Mr Martin’s later communications were sent to various governours of the school, and in some cases focussed on his own situation, but the tribunal was equally critical of the content without properly considering all the factors required.

Whilst Mr Martin’s case will need to be reviewed afresh, the reminder from the appeal tribunal was clear – a qualifying disclosure must properly meet all the requirements to receive protection, but each element needs to be analysed sufficiently before a decision is made. Both employers and employees will be well advised

Safia Tharoo
Barrister, 40 Bedford Row, London